Both Sides Now (But Not In Florida)

Judicial Discipline charges brought by the Florida Judicial Qualifications Commission have an unsavory odor of selective enforcement as suggested by the accused judge’s response

The 2022 judicial race for Circuit Court Judge, Group 37, was unlike other judicial races. In the lead up to the election, and in the wake of the Dobbs v. Jackson Women’s Health Organization decision (and the leak of an earlier draft), the national media latched onto this race not because of any actions Judge Jacobs took, but because of the Second District Court of Appeal’s reversal of Judge Smith’s order denying a judicial bypass of a minor seeking an abortion. In re Petition for Judicial Waiver of Parental Notice & Consent or Consent Only to Termination of Pregnancy, 333 So. 3d 265 (Fla. 2d DCA 2022).

This media attention highlighted this election as an important race and defined it as one about reproductive rights, with a focus on Judge Jared Smith’s prior ruling. This resulted in Judge Jacobs’ endorsement by organizations like Planned Parenthood and Indivisible Action Tampa Bay, who would otherwise generally not engage in judicial campaigns, and in members of the public using Judge Smith’s prior decision as an argument in favor of his opponent.

This also resulted in Judge Jacobs’ opponent, Judge Smith, making and supporting statements he may not have otherwise made and many of Judge Jacobs’ comments at issue here were made in response to these. For example, Judge Jacobs’ concern about antisemitism was only raised after Judge Smith stood next to his wife while she made a number of comments about Judge Jacobs – who is Jewish – like “we pray for her, she needs Jesus” and that “to deny God and deny the Bible, [Judge Jacobs’] heart is very hard toward God.”

Judge Smith also had a campaign advertisement (later removed) that alleged that Jacobs was “woke,” had a “liberal agenda,” and would be an “activist judge.” If politics, religion, and disparaging claims were injected into this campaign, it was not due to Judge Jacobs, but she did respond.

It appears that no formal charges will be brought against Judge Smith. However, the context in which the alleged actions took place is relevant in considering Judge Jacobs’ actions and her ability to continue to serve as a judge. Judge Jacobs regrets that the 2022 race took the path it did, but hopes this panel will recognize that it was not her actions alone, but a culmination of many factors, that made it a more difficult race than other judicial elections.

During the pendency of the confidential investigation, Judge Jacobs felt constrained in her ability to apologize but now that the matter is public, she has expressed her remorse to the impacted individuals.

Judge Smith – who lost – received a judicial promotion from Governor DeSantis.

As reported by WFLA 8

The Florida Judicial Qualifications Commission has found probable cause to bring charges against Hillsborough County Circuit Judge Nancy Jacobs, according to recently-filed court documents.

The commission, which was formed to investigate alleged misconduct by Florida state judges, alleged Jacobs made “inappropriate and disparaging remarks” about her opponent last year.

Jacobs defeated the incumbent Circuit Judge Jared Smith, who made headlines earlier that year for a ruling on a Tampa-area teenager’s request for an abortion without parental consent. In the Jan. 2022 ruling, Smith wrote that the 17-year-old was not mature enough to get an abortion, citing her 2.0 grade point average, among other things.

According to court documents filed Thursday, remarks about the case were posted to Jacobs’ campaign social media accounts, saying Smith “ordered (the teenager) to have forced birth.” The campaign also called smith a “scary man” and decried his suspected “anti-abortion views.”

The race between Jacobs and Smith focused on abortion and the role religion plays for those on the judicial bench. As cited in the court documents formally charging Jacobs, she questioned if Smith’s religious beliefs influenced his ruling.

“Religion is important but it seems to be it has wrapped up his entire life… your God and your Bible should not be your moral compass… you need to set those things at the door and make a decision as a judge and do your job as a judge, and that is what sets me apart from my opponent as well,” Jacobs said at a campaign forum in July 2022.

Jacobs was accused of sending a text message to a citizen saying her opponent was “a bigot, an anti-Semite…not a good person… hates me and people like me.”

The court documents allege Jacobs sought an endorsement from the Florida Planned Parenthood PAC, which “appeared to be a commitment to ruling a certain way in cases involving abortion,” the commission wrote in its notice. The PAC tweeted its congratulations to Jacobs after she won the primary.

Jacobs was accused of “inappropriately (injecting) partisan politics into the strictly non-partisan judicial campaign” by accepting an endorsement from Indivisible Action Tampa Bay, “an expressly partisan organization whose stated mission is to … ‘defeat…right wing takeover of American government’,” court documents stated.

The notice stated Jacobs “has admitted to the conduct and that it violated the Code of Judicial Conduct” in each of the six charges against her.

When reached for comment, Jacobs’ attorney, Brian Tannebaum of Miami, provided the following statement:

“Judge Jacobs has served the people of Hillsborough County well and looks forward to continuing to fairly and impartially administer justice.”

 BRIAN L. TANNEBAUM

After losing to Jacobs in the 2022 election, Smith was appointed to the Sixth District Court of Appeal by Gov. Ron DeSantis.

According to the Qualifications Commission, Jacobs has 20 days to file a response to the charges before appearing at a hearing. If she is found to have violated the rules of conduct, the commission could recommend disciplinary measures, including removal from the bench.

The Florida Supreme Court will have the final word.

Pleadings linked here.  (Mike Frisch)